[EL] Breaking: 7th Circuit order/Dan Tokaji 6th Cir analysis

[Rick Hasen]

    Breaking: 7th Cir. Denies Rehearing En Banc in WI Voter ID Case on
    an Equally Divided Vote: Analysis <http://electionlawblog.org/?p=65892>

Posted onSeptember 26, 2014 7:46 am 
<http://electionlawblog.org/?p=65892>byRick Hasen 
<http://electionlawblog.org/?author=3>

You canread the order 
here<http://electionlawblog.org/wp-content/uploads/7th-en-banc.pdf>or below.

    On September 12, 2014, a panel of this court stayed the injunction
    that the district court had issued. Plaintiffs have filed a motion
    for reconsideration, asking the court to vacate the stay and
    reinstate the injunction. The panel that issued the stay has voted
    to deny the motion for reconsideration. A judge called for a vote on
    the request for a hearing en banc. That request is denied by
    an equally divided court. Chief Judge Wood and Judges Posner,
    Rovner, Williams, and Hamilton voted to hear this matter en banc. In
    the coming days, members of the court may file opinions explaining
    their votes.

A few points:

1. I expect that the plaintiffs will next try the Supreme Court. 
  Ordinarily I've been saying thatprogressives need to stay out of the 
Supreme Court 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2009/09/how_liberals_can_win_by_losing_at_the_roberts_court.html>on 
these voting rights cases. But (a) this is a really egregious order 
changing the rules midstream in violation of the Supreme Court's own 
admonition in the Purcell v. Gonzalez case; and (b) now that theCourt 
has before it<http://electionlawblog.org/?p=65883>the Ohio case, 
presenting a similar section 2 Voting Rights Act issue but withmuch 
worse facts <http://electionlawblog.org/?p=65853>for voting rights 
advocates, it would be better for this to be up there at the same time. 
  So there's not much to lose to get this case before the Court at the 
same time.

2. Judge Posner did not recuse, as some thought he might. I would expect 
he or others on the side voting for review will explain themselves, and 
quickly if the case heads to the Supreme Court.  While this is not a 
party divide, it does appear mostly to be an ideological divide on the 
Court.

3. In the meantime, Wisconsin will continue to work on implementing its 
voter id law, and I expect the facts about how hard or easy it is for 
people to get id /right now/will be relevant in the Supreme Court's 
consideration, should the Court consider the case.

[This post has been updated.]

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    Context and Pretext: Why the Courts Were Right to Halt Ohio's Latest
    Voting Restrictions <http://electionlawblog.org/?p=65886>

Posted onSeptember 25, 2014 7:27 pm 
<http://electionlawblog.org/?p=65886>byDan Tokaji 
<http://electionlawblog.org/?author=5>

The Sixth Circuit Court of Appeals yesterday upheld the district court's 
ruling in in/NAACP v. Husted 
<http://moritzlaw.osu.edu/electionlaw/litigation/NAACP.v.Husted.php>,/which 
stopped new restrictions on early voting from taking effect. This 
decision is good news for Ohio voters. It faithfully applies existing 
law to the evidence admitted in the district court, maintaining the 
established period for same day registration and early voting. The 
federal courts have done their job by safeguarding voters against 
partisan manipulation of election rules. This comment explains why the 
ruling is correct and why Ohio's call to stay the existing court order 
should be rejected, especially now that same day registration and early 
voting are just about to begin.

/NAACP v. Husted/concerns a state law passed earlier this year 
eliminating Ohio's limited window for same day registration and early 
voting, commonly referred to as "Golden Week."* During this week 
(September 30-October 6 this year), voters can simultaneously register 
and cast their ballots in person. Tens of thousands of voters voted in 
this period the past two presidential elections, with thousands using 
the opportunity for same day registration and early voting. The evidence 
presented in the lower court showed that African American, low-income, 
and homeless voters were more likely to use this voting opportunity. The 
Sixth Circuit affirmed the district court's preliminary injunction, 
based on its conclusion that the NAACP and other plaintiffs had shown 
likely violations of both the Constitution and the Voting Rights Act.

Two aspects of yesterday's ruling that have been lost in some of the 
early reaction. The first is that/context matters/. Yesterday's ruling 
was not written against a blank slate. It instead comes after a 
now-lengthy litany of voting restrictions imposed by the Ohio 
legislature and state election officials over the past decade. Space 
doesn't permit me to recount them all here, but they include 
restrictions on early voting and provisional voting that were enjoined 
during the 2012 election season. Yesterday's decision from the Sixth 
Circuit, like that of the district court, is informed by this recent 
history. Ohio comes to court with dirtier hands than just about any 
other state over the last decade.

Context matters in another, even more important way. The Sixth Circuit, 
like the district court, carefully scrutinized the evidence regarding 
who actually uses early voting during this period and what the likely 
effects of its elimination would be. As the panel made abundantly clear, 
the legal question is not whether, in the abstract, voters have a 
"right" to early voting 35 days before the election. It is instead 
whether,/in the context of Ohio's current election system/, the 
elimination of same day registration and early voting violates the Equal 
Protection Clause and Voting Rights Act.

The importance of context is a point that every good lawyer and judge 
understands, but is sometimes lost on us law professors. We academics 
love to debate abstract principles. But in the real world, cases hinge 
at least as much on the facts as on the law. And context matters a great 
deal.

That is especially true of election administration litigation. 
Contextual evidence is key to the legal test that the Supreme Court and 
the Sixth Circuit apply in equal protection challenges to voting rules. 
That test, now commonly referred to as the/Anderson-Burdick/standard, 
requires that the "character and magnitude" of the burden on voting be 
weighed against the "precise interests" put forward by the state. This 
test was embraced by a majority of Supreme Court justices in 
the/Crawford v. Marion County Election Board/case, which upheld 
Indiana's voter ID law against a facial challenge.

The language of the constitutional test warrants careful attention. 
Courts are supposed to assess not only the magnitude of the burden on 
individual voters, but also its/character/-- including whether or not 
its discriminatory. The test thus requires courts to consider which 
demographic groups will bear the burden of the voting rule being 
challenged. The Sixth Circuit engaged in this analysis two years ago 
in/Obama for America v. Husted/and/Northeast Ohio Coalition for the 
Homeless v. Husted/, in striking down Ohio's restrictions on early 
voting and provisional voting. The district court and Sixth Circuit did 
in the same in/NAACP v. Husted/. Although the law that is neutral on its 
face, the courts found it to have discriminatory effects. Based on an 
assessment of the expert evidence, they found that closing the window 
for same day registration and early voting would disproportionately 
burden African American, poor, and homeless voters

Context also matters for the NAACP's other claim, under Section 2 of the 
Voting Rights Act. The text of that statute prohibits voting rules that 
"result[]" in the denial or abridgement of the vote on account of race. 
The statute also says that courts are supposed to consider the "totality 
of circumstances" in making this determination. As the Supreme Court 
held in/Thornburg v. Gingles/, a seminal Voting Rights Act case quoted 
in yesterday's ruling: "The essence of a § 2 claim is that a certain 
electoral law, practice, or structure interacts with social and 
historical conditions to cause an inequality in the opportunities 
enjoyed by black and white voters to elect their preferred 
representatives." Although the precise quantum of evidence required to 
prevail on Section 2 vote denial claims is less well established, this 
too is a context-specific test.

The district court and the Sixth Circuit did exactly what the law 
requires in/NAACP v. Husted/, scrutinizing the evidence regarding Ohio's 
latest restrictions on early voting in the context of the state's 
history. That record was voluminous, including expert testimony from 
respected social scientists documenting that African Americans are 
disproportionately heavy users of early voting during the period in 
question. The expert testimony also addressed evidence of race 
discrimination, such as a statement from the Chair of Franklin County's 
Republican Party, cited by the district court, that "we shouldn't 
contort the voting process to accommodate the urban---read African-- 
American---voter turnout machine." That is circumstantial evidence 
of/intentional/race discrimination, more than what's required under 
Section 2's results-based test.

It's tempting to skim or skip the portions of a judicial decision 
describing the evidence and assessing the expert testimony. But the 
evidence matters a lot in this type of case. It reveals the effects of a 
law, including who's likely to be hurt by it, as well as the real 
reasons for its enactment. And in this case, it reveals reasons to be 
suspicious -- especially when a state legislature dominated by one party 
passes laws closing off opportunities used mostly by voters who tend to 
favor the other party. One doesn't have to be a conspiracy theorist to 
believe that Ohio's recent early voting restrictions might, just maybe, 
be motivated by a desire to gain partisan advantage.

This brings me to the second important point overlooked in the immediate 
reaction to the Sixth Circuit's ruling. The record developed in the 
district court provided strong reason to believe that the state's stated 
justifications for the new restrictions were/pretextual/. The state 
claimed that it needed to eliminate Golden Week -- which ends a month 
before Election Day -- to prevent fraud. Huh? This is a silly argument, 
one that doesn't pass the straight-face test. Ohio counties have a full 
month after this period ends to verify the eligibility of applicants. 
Although the state's anti-fraud argument isn't plausible, the fact that 
it dared to make such an argument speaks volumes about the real 
motivations for this law.

Ohio's other main argument for eliminating same day registration and 
early voting was to save money. This, of course, is an argument that 
might be tried for almost any voting limitation. But based on the 
evidence that was presented to the district court and the findings that 
court made, the Sixth Circuit properly found that this rationale didn't 
withstand carefully scrutiny either. The irony here is that the argument 
would have the most force with respect to large, urban counties like 
Cuyahoga County (Cleveland area) -- but these are the counties that, in 
general, like early voting the most because it takes pressure off the 
polls on Election Day. And as the Sixth Circuit pointed out, all 
counties are required to be open during this period anyways, so it's 
dubious whether there would be much of a burden at all.

So if fraud prevention and saving money weren't the real reasons for 
Ohio's new voting restrictions, what/were/the real reasons? I doubt that 
anyone who's closely followed the Ohio legislature's actions in recent 
years is genuinely stumped by that question. For as in prior years, a 
legislature dominated by one party has adopted new rules impeding means 
of voting used mostly by voters likely to favor the other party. Does 
anyone really believe that Ohio's Republican-dominated legislature would 
have restricted same day registration and early voting if Republicans 
rather than Democrats were the heaviest users?

To be sure, the Sixth Circuit's ruling doesn't expressly say that 
partisan manipulation was at the heart of Ohio's law. But reading 
between the lines of yesterday's opinion, like previous court decisions 
invalidating other Ohio voter restrictions, it's evident this is what 
was really driving the court. Both the Equal Protection Clause and 
Voting Rights Act tests allow courts to consider circumstantial evidence 
of partisan manipulation. In curbing the most egregious instances, 
federal courts -- which are more insulated from partisan politics than 
other institutions -- are fulfilling their proper role in our democratic 
process.

Of course, the applicable legal standards don't/require/a finding of 
intentional partisan manipulation. And I don't think they should. Do we 
really want to make federal judges accuse state legislators of being 
partisan hacks before invalidating unwarranted restrictions on voting? 
Instead, the existing legal standards help courts ferret out laws whose 
real purpose and effect is to help the party in power by making it 
harder for certain groups of citizens to vote. That's what the Ohio 
legislature was doing here -- and, in fact, has repeatedly tried to do 
over the last decade.

Unfortunately, Ohio hasn't given up yet. The Attorney General and 
Secretary of State filed "emergency" petitions for review with thefull 
(en banc) Sixth Circuit 
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EmergencyAppealEnBanc.pdf>andthe 
U.S. Supreme Court 
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/SCOTUS-StayApplication.pdf>. 
They seek an "immediate" stay of the injunction -- by which they 
presumably mean the preliminary injunction the district court issued on 
September 4. This argument is genuinely puzzling, and the "emergency" is 
entirely of their own imagination. The reality is that yesterday's 
decision simply preserves the state of affairs that has existed 
for/almost three weeks/, since the district court's injunction. Although 
the petition repeatedly refers to this as a "last-minute" change, Ohio 
counties have known for a while now that they'd have to provide the 
opportunity for same day registration and early voting starting on 
September 30. And of course, the early voting rules kept in place are 
the same ones used in Ohio for many years.

Most damning to Ohio's stay argument is the fact that, when the Sixth 
Circuit panel denied a stay of the district court's order on September 
12 -- two weeks ago --/the state did nothing/. If the situation were 
really so dire, why didn't the state immediately seek review of the 
panel's stay denial, either from the en banc Sixth Circuit or the 
Supreme Court? The rules in place after yesterday's Sixth Circuit 
decision are precisely the same as those in place before yesterday: 
early voting in Ohio begins on September 30.

The state's real concern, I'm sure, is with the legal precedent 
established by yesterday's ruling. The state is certainly entitled to 
ask for further review of the legal questions in due course. For reasons 
set forth above, I think such review should be denied. But even if one 
disagrees, that's a poor reason for staying the district court's 
injunction. With early voting scheduled to begin just three working days 
from now, it would be extremely disruptive to call it off now as the 
State requests. Such an order would/really/be a last-minute change in 
the election rules, of the very type that courts generally should avoid, 
as the State's petition admonishes.

I'm a lawyer, not a soothsayer, so I won't try to predict what either 
the en banc Sixth Circuit or the Supreme Court will do. My goal here is 
instead to dispel some misconceptions about yesterday's opinion, which 
is neither as sweeping nor as dramatic as one might be led to believe 
from the State's petition, and to explain why staying the district court 
order would be a big mistake. The Sixth Circuit ruling doesn't say that 
all states have to offer early voting 35 days before the election. Nor 
did the court say that Ohio was violating the Constitution before it 
adopted no-excuse absentee voting in 2005. Instead, yesterday's decision 
applies existing precedent requiring courts to consider evidence 
regarding the context in which new voting restrictions are enacted and 
whether the state's stated rationales are pretextual.

* Disclosure: I served as counsel for plaintiffs in/Project Vote v. 
Madison County Board of Elections/, which resulted in a court order 
keeping the window for same day registration and early voting open in 
the 2008 election. I am not involved in the current litigation.

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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,voter 
registration <http://electionlawblog.org/?cat=37>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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